UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MAURICE W. PIERRE,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

NY-0752-15-0240-C-1

DATE: April 4, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Louis D. Stober, Esquire, Garden City, New York, for the appellant.

J. Douglas Whitaker, Esquire, Omaha, Nebraska, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the compliance initial 

decision, which dismissed his petition for enforcement of a settlement agreement 

for lack of jurisdiction. Generally, we grant petitions such as this one only in the 

following circumstances: the initial decision contains erroneous findings of 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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material fact; the initial decision is based on an erroneous interpretation of statute 

or regulation or the erroneous application of the law to the facts of the case; the 

administrative judge’s rulings during either the course of the appeal or the initial 

decision were not consistent with required procedures or involved an abuse of 

discretion, and the resulting error affected the outcome of the case; or new and 

material evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the compliance initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 As the administrative judge found in the compliance initial decision, t he 

appellant filed a Board appeal alleging that he involuntarily retired from his 

Special Agent position with the agency. Pierre v. Department of Homeland 

Security, MSPB Docket No. NY-0752-15-0240-C-1, Compliance File (CF), Tab 9, 

Compliance Initial Decision (CID) at 2. The parties reached a settlement 

resolving the appeal. Pierre v. Department of Homeland Security, MSPB Docket 

No. NY-0752-15-0240-I-2, Appeal File (I-2 AF), Tab 21 at 6-11. The 

administrative judge issued an initial decision dismissing the appeal as settled. 

I-2 AF, Tab 22, Initial Decision (ID) at 1-2. She stated that the parties agreed not 

to make the settlement agreement enforceable by the Board, and thus, the

agreement was accepted into the record only to document the disposition of the 

appeal. ID at 2.

¶3 The appellant thereafter filed a petition for enforcement with the Board

alleging that the agency breached the terms of the settlement agreement. CF, 

Tab 1. In a show cause order, the administrative judge informed the appellant 

that the Board may not have jurisdiction over his petition for enforcement and 
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ordered him to file evidence and argument on the jurisdictional issue . CF, Tab 4.

The appellant responded. CF, Tab 7. 

¶4 The administrative judge issued a compliance initial decision dismissing the 

petition for enforcement for lack of jurisdiction. CID at 1-3. Specifically, she 

found that, because the settlement agreement was not entered into the record for 

enforcement purposes due to an unresolved issue of Board jurisdiction over the 

underlying appeal, the Board lacks the authority to enforce the agreement. CID 

at 2. She also found that, although the appellant indicated that he wished to file a 

petition for review concerning the breach issue, a petition for review must be 

filed with the Clerk of the Board. CID at 1 n.1. She further found that, to the 

extent he was attempting to file a petition for review with the field office, such a 

motion was denied. Id.

¶5 The appellant has filed a petition for review of the compliance initial 

decision. Petition for Review (PFR) File, Tab 1. He reasserts that the agency 

breached the terms of the settlement agreement by providing an inadequate “good 

guy” letter. Id. at 5-7; CF, Tab 1 at 3-4. In addition, he requests that either the 

Board grant his petition for enforcement and reverse the compliance initial 

decision, or “the Petition be deemed a new Petition for a violation of [his] rights 

as expressed in the settlement agreement.” PFR File, Tab 1 at 5. He also submits

his response to the administrative judge’s show cause order with exhibits and the 

compliance initial decision. Id. at 11-34.2The agency has filed a response. PFR

File, Tab 3.

 

2 We need not consider these submissions because they do not constitute new evidence . 

See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (finding that 

evidence that is already a part of the record is not new); see also 5 C.F.R. § 1201.115(d) 

(specifying that the Board may grant a petition for review based on new and material 

evidence). Furthermore, these submissions are immaterial to whether the Board has 

jurisdiction over the appellant’s petition for enforcement, and thus, do not warrant a 

different outcome than that of the compliance initial decision.
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¶6 For the following reasons, we agree with the administrative judge’s finding

that the Board lacks jurisdiction over the appellant’s petition for enforcement. 3 

CID at 2-3. It is well settled that the Board lacks authority to enforce a 

settlement agreement that was not entered into the Board’s record for 

enforcement purposes. Barker v. Department of Agriculture, 100 M.S.P.R. 695, 

¶ 6 (2006); Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580, 583 

(1994). Here, the settlement agreement is silent regarding whether it should be 

entered into the record for purposes of enforcement by the Board, and the 

appellant does not dispute that, during the settlement conference, the 

administrative judge informed the parties that the settlement agreement would not 

be entered into the record for enforcement purposes and that the parties agreed to 

such. I-2 AF, Tab 20, Compact Disc (settlement conference recording). Thus, 

the agreement is not enforceable by the Board.

¶7 The appellant has reiterated his request to file a petition for review 

regarding an alleged breach of the agreement by the agency. PFR File, Tab 1

at 5, 7-8; CF, Tab 7 at 4-6. Because the appellant neither argues that the 

administrative judge erred in dismissing the underlying appeal as settled nor 

challenges the validity of the settlement agreement, his request is in substance a 

petition for enforcement, and thus, it provides no reason to disturb the compliance 

initial decision. See Diamond v. U.S. Postal Service, 51 M.S.P.R. 448, 

450 (1991) (construing the appellant’s filing as a petition for enforcement when 

the appellant alleged that the agency breached the settlement agreement), aff’d, 

972 F.2d 1353 (Fed. Cir. 1992) (Table); see also Barker, 100 M.S.P.R. 695, ¶ 4 

 

3 While the petition for review of the compliance initial decision was pending, the 

Board held in Delorme v. Department of the Interior, 124 M.S.P.R. 123, ¶ 21 (2017), 

that the Board has enforcement authority over settlement agreements that have been 

entered into the record for that purpose, independent of any prior finding of Board 

jurisdiction over the underlying matter appealed. Here, because the settlement 

agreement was not entered into the record for enforcement purposes, Delorme has no 

bearing on the instant case. 
5

(stating that a party may file a petition for review challenging the validity of a 

settlement agreement, regardless of whether it has been entered into the record for 

enforcement, if the party believes that the agreement is unlawful, involuntary, or 

the result of fraud or mutual mistake).

¶8 Accordingly, we find that the administrative judge properly dismissed the 

appellant’s petition for enforcement for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
6

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 
7

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 
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(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

 

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The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
9

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board